You do not have to accept the highest offer made at the closing date, or indeed any offer at all. Usually, the offer will include a number of conditions to suit the person making the offer. These would include the date of entry, and any items to be included in the price, such as carpets and curtains, and technical conditions about, for example, the information in your property questionnaire and any associated planning permission, building control consent, guarantees and warranties.
It is up to you to decide which offer you want to accept. While usually you will want to accept the highest offer, other conditions, such as the date of entry, may also be important you. If the highest offer comes with conditions you don’t want to accept, then your solicitor will find out whether there is any room for negotiation. If you are not happy with the conditions, you will then have to decide whether to accept the next highest offer. You could also decide not to accept any of the offers, and re-advertise.
Your agent, if you have one, will normally deal with the main conditions in the offer including the price, the date of entry and the extras that will be included in the sale (such as carpets and curtains). They may negotiate on your behalf to try and change the date of entry and inclusions. If the property is sold at a closing date they will not be able to negotiate on the sale price.
Once you have made a decision, the offer will be passed on to your solicitor (if he or she is not also your selling agent) who will discuss the offer terms with you in more detail before issuing a letter known as a qualified acceptance, which sets out your acceptance of the offer, subject to those conditions that need to be changed (see also 5.2).
Usually, there will then be an exchange of letters (missives) in which your solicitor will try to vary any unacceptable conditions. Normally, this only takes a few days, but sometimes takes longer if there are any unusual conditions in either the offer or qualified acceptance. Once both sides agree, the missives are concluded, and at that stage there is a binding agreement between you. Until the missives are concluded, either party can withdraw without penalty.
7.6. Once the missives are concluded
Once the missives are concluded, your solicitor will do the conveyancing, which is the legal transfer of the title from you to the buyer. The procedures for doing the conveyancing for a sale are similar to those for a purchase (see 5.5) but from the other side of the transaction. They mainly involve your solicitor responding to the buyer’s solicitor’s enquiries. Your solicitor will also agree the disposition drafted by the buyer’s solicitor and arrange for the repayment and discharge of your loan over the property. Just before the settlement, you should sign the disposition and make arrangements to hand over the keys. A new system of registration, known as Automated Registration of Title to Land, is gradually being introduced. This allows for electronic registration of land and property that is already registered in the Land Register If your sale is being done in
this way, you will be asked to sign a mandate authorising your solicitor to sign the disposition electronically on your behalf. After the settlement, your solicitor will settle your mortgage account and pay the balance to you after deducting his or her fees and expenses, or put the balance towards the purchase of your new home if you are also buying.
Information on conveyancing fees is given under costs in 5.8. When you are selling, the fees should cover:
• preliminary work, including exchanging missives, leading up to the conclusion of the bargain;
• conveyancing;
• handling the legal work connected with the discharge of the loan.
While this is being done, there are a number of things for you to attend to. They are described below and in Part 8.
Insurance and maintenance
Although the risk of loss or damage to the property passes to the buyer when missives are concluded, you should keep your own building and contents insurance in force until the date of entry, because you are responsible for maintaining the property until then. Sometimes the buyer will ask to visit the home before the date of entry, perhaps to measure up for curtains. While this is perfectly all right, it would not be a good idea to allow the buyer to do any significant work on the home before the date of entry, such as installing a cooker. There is always a chance that something may go wrong. Make sure that you tell your solicitor if you arrange for any repairs or find out about any local authority notices that affect the property and were not mentioned in your property questionnaire.
Outstanding costs
If you live in a flat and you are liable for any costs incurred as a result of a decision made under the terms of your title deeds
or the Tenement Management Scheme, you will remain liable if the work or maintenance is arranged or carried out before the date your flat changes hands. However, before you sell, you, your fellow owners or your property manager can register a notice in the Land Register of Scotland or the Register of Sasines, depending on where your title deeds are registered, that you are potentially liable for unpaid costs. If a notice is registered at least 14 days before the date that the new owner acquires ownership, then your liability will be shared with the new owner (see Common Repair, Common Sense at 3.14).
Hire purchase, credit agreements and loans
Your contract with the buyer will normally require that there are no hire purchase or credit agreements or home improvement loans outstanding on any items included in the sale on the date of entry. Make sure that any of these are paid before the date of entry.
Periodic charges and outgoings
If you are paying any property management charges, you should give your solicitor details of these so that they can be apportioned at the date of entry. You should also make sure that he or she has details of your council tax banding and pays all outstanding charges until the date of entry.
Settlement
At settlement, a disposition (the document transferring the ownership or title from you to the buyer) in favour of the buyer is exchanged for the buyer’s solicitor’s cheque for the full purchase price. Your solicitor will pay any outstanding loans on the property from the sale proceeds, take off his or her fees and outgoings, and either give you a cheque for what is left, or put this towards the purchase price for your new home. You should also be given a detailed statement of all the transactions. Normally, you will receive the statement and any cheque on the day the sale is completed or very shortly afterwards.
The keys
Arrange with your solicitor to hand over the keys to the buyer. You can either deliver them to your solicitor on the date of entry or ask him or her to contact you and tell you when you can hand them over. Never hand over the keys before this. 7.7. Complaints
If you have a complaint about the chartered surveyor who carried out the survey and provided the valuation for your Home Report, see 4.3.
If you are unhappy with your solicitor’s services, you should first try to sort things out directly with the solicitor. If you are unable to resolve the matter, complaints about solicitors are dealt with by the Scottish Legal Complaints Commission and the Law Society of Scotland – see 5.9.
All estate agents are required to belong to an estate agents’ redress scheme approved by the Office of Fair Trading. The approved schemes are The Property Ombudsman and the Surveyors Ombudsman Service.
If you are unhappy with your estate agent’s services, you should first try to sort things out directly with the estate agent. If you are still not happy, you can complain to whichever redress scheme the agent belongs to – The Property Ombudsman or the Surveyors Ombudsman Service. If the agent is a member of the National Association of Estate Agents, you can also complain to the association, which has powers to discipline its members. If you believe there has been a breach of the Estate Agents Act or the Property Misdescriptions Act (see 3.5), you should contact your local trading standards department. For guidance on these Acts, see 7.8.
The Property Ombudsman
If you are unable to resolve a complaint with an estate agent, you should find out if the agent is a member of The Property Ombudsman scheme or the Surveyors Ombudsman Service.
The Property Ombudsman (see 7.8) will attempt to resolve complaints against members of the scheme by mediation or conciliation. If that fails and the ombudsman supports your complaint, the ombudsman has the power to award you compensation up to £25,000, which is binding on the agent. Surveyors Ombudsman Service
Details of the Surveyors Ombudsman Service are given at 4.3, and contact details are at 4.4.
National Association of Estate Agents members
Estate agents who are members of the National Association of Estate Agents have the letters ANAEA, MNAEA or FMAEA after their names and the NAEA logo on their premises and stationery. Members of the association are required to comply with the Rules of Conduct and Code of Practice for Residential Estate Agency, which includes having an internal complaints procedure and a designated senior member of staff to deal with complaints.
If you have a complaint about an estate agent, you should first complain to the agent to attempt to resolve the problem. If you are unable to resolve your complaint, you should complain to the NAEA compliance officer (see 7.8). The association will look into all complaints providing there is no alternative means of resolving them. The association will not deal with complaints involving:
• Money outstanding or compensation, which you can take to the small claims court. You should get independent legal advice from a citizens’ advice bureau or a solicitor before doing so. • Allegations of a breach of the Estate Agents Act 1979 or the
Property Misdescriptions Act 1991, which you should refer to the trading standards department of your local council. • Matters on which legal proceedings have been started until
• Conduct that occurred more than two years before you complained.
The association can discipline members found to be in breach of the rules of conduct and code of practice by a caution or formal warning. Members can also be brought before a disciplinary tribunal, which has the power to fine them for each breach of the rules, or to suspend or expel them from membership. 7.8. Further information
More information about the Home Report is available on the Scottish Government Home Report website: http://www. homereportscotland.gov.uk
A directory of chartered surveyors in Scotland and guides to understanding property surveys, and home buying and selling are available free of charge from the Royal Institution of Chartered Surveyors contact centre: tel: 0870 333 1600, e-mail: [email protected]. Ask for information on services in Scotland. You can also get informal advice from the professional information team at the contact centre. RICS Scotland has produced Home Report: a guide for buyers and sellers
in Scotland, which is available from the contact centre or can be
downloaded from www.rics.org/homereport
To make a complaint about a member of The Property Ombudsman scheme, contact The Property Ombudsman, Beckett House, 4 Bridge Street, Salisbury, Wiltshire SP1 2LX (tel: 01722 333306, e-mail: [email protected]). You can find information about the scheme and a list of members at http:// www.tpos.co.uk/make_complaint_sales.htm
The National Association of Estate Agents can be contacted at: Arbon House, 6 Tournament Court, Edgehill Drive, Warwick CV34 6LG (tel: 01926 496800, e-mail: info@naea. co.uk) or visit the NAEA website http://www.naea.co.uk/ to find local members. To make a complaint about a member, contact the Compliance Officer at the above address, or e-mail: [email protected]
You can find guidance on the Estate Agents Act on the Office of Fair Trading website at: http://www.oft.gov.uk/ shared_oft/business_leaflets/general/oft031.pdf and guidance on the Property Misdescriptions Act on the Department of Business, Enterprise and Regulatory Reform’s website at: http://www.berr.gov.uk/files/file25449.pdf